IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CT-01170-SCT

J. H. MOON & SONS, INC. AND WESTERN CASUALTY AND SURETY COMPANY

v.

BILLY D. JOHNSON

ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 08/27/97

TRIAL JUDGE: HON. JOHN B. TONEY

COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANTS: BETTY B. ARINDER

ATTORNEYS FOR APPELLEE: CHAD J. HAMMONS

ROBERT L. WELLS

NATURE OF THE CASE: CIVIL - WORKERS' COMPENSATION

DISPOSITION: AFFIRMED AND REMANDED - 12/16/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 01/06/2000

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. This appeal presents a question of first impression: whether workers' compensation benefits should be

based on a worker's salary when his injury occurred, or on the salary he was earning many years later when

he was finally declared disabled. The Administrative Law Judge and the Workers' Compensation

Commission found that benefits should be based on the salary at the time of the injury. The Madison

County Circuit Court and the Court of Appeals found that the benefits should be based on the salary at the

time of determination of disability. After consideration we find that the judgment of the Court of Appeals

should be affirmed.

I.

¶2. Billy D. Johnson began employment with J.H. Moon & Sons (Moon) in 1959 as a carpenter and was

eventually promoted to construction superintendent. Moon primarily constructs bridges and highway

overpasses. On December 2, 1981, Johnson, while working in the scope and course of his employment,

was involved in an automobile accident. As a result of the accident, Johnson experienced considerable pain

and numbness in his neck, shoulders, arms, and hands. In January of 1982, Johnson sought treatment from

Dr. Lucien Hodges of Jackson, Mississippi, and later underwent cervical disc fusion surgery that same

month. Johnson returned to work, but he continued to experience pain in his neck and arms.

¶3. As a result of the continuing pain and discomfort, Johnson traveled to the Tulane University Medical
Center in New Orleans, Louisiana, in May of 1983 and consulted with Dr. Raoul Rodriguez, an orthopedic

surgeon. After an examination, Dr. Rodriguez determined that Johnson's pain and discomfort was caused

by the compression of the median nerve due to non-union of the vertebra in the fusion performed by Dr.

Hodges in January of 1982. Dr. Rodriguez further noted that the symptoms experienced by Johnson were

indicative of compression of the median nerve in the carpal tunnel, or carpal tunnel syndrome. Dr.

Rodriguez continued to treat Johnson between 1983 and 1985.

¶4. In December of 1985, Dr. Rodriguez concluded that additional surgery was necessary to correct the

non-union of the vertebra in the cervical spine. The removal of a fragment of disc material and refusion of

Johnson's vertebra were performed in January of 1986. Although the surgery performed by Dr. Rodriguez

helped to diminish the pain in Johnson's neck and shoulders, Johnson continued to experience numbness in

his right arm and hand.

¶5. On June 4, 1987, Administrative Law Judge Joseph Edmund Winston held that Johnson's injuries

constituted a compensable injury arising from the December 1981 accident and ordered Moon and its

workers' compensation insurer, Western Casualty and Surety Co., to pay all of Johnson's reasonable and

necessary hospital and medical expenses and temporary total disability benefits of $112.00 per week. The

order did not make a finding of permanent disability.

¶6. On November 25, 1987, after conducting an electromyogram, Dr. Rodriguez concluded that the earlier

diagnosis of carpal tunnel syndrome was correct. Due to the continuing presence of pain, Johnson continued

to see Dr. Rodriguez in approximately fifteen follow-up office visits between August 1987 and April 1990.

In April 1990, Administrative Law Judge Neil W. White held that the carpal tunnel syndrome experienced

by Johnson was related to the December 1981 accident. Johnson was awarded both past and future

medical expenses related to his cervical spine injury.

¶7. Johnson had continued to work for Moon between the December 1981 accident and July 15, 1993.

On this date Dr. Rodriguez concluded that Johnson was totally disabled and unable to return to work.

Johnson received temporary total disability benefits from January 25, 1982, to March 7, 1982, at a rate of

$112 per week and received wages in lieu of compensation from January 30, 1986, to July 7, 1986. From

December 2, 1981, until July 15, 1993, Johnson sustained no additional injuries which aggravated the injury

he sustained in 1981 or contributed to his disability.

¶8. In April 1994 Johnson filed a Motion for Immediate Hearing to Determine Benefits, claiming that he

was entitled to disability benefits of $235.84 per week from July 15, 1993, the maximum rate in effect on

that date.

¶9. On May 6, 1996, Administrative Law Judge Deneise Lott ordered that Johnson was entitled to

permanent total disability benefits at the rate of $112 per week for 450 weeks beginning December 2,

1981, the date of the injury, with proper credit for compensation and for wages paid in lieu of

compensation. Judge Lott concluded that Liberty Mutual Insurance Company, the workers' compensation

carrier as of July 15, 1993, was not liable for any benefits to be paid and that Western Casualty was solely

responsible for payment of Johnson's benefits.

¶10. Johnson filed a motion to reconsider on May 23, 1996. This motion was denied on June 26, 1996, by

Judge Lott. Johnson petitioned for review by the Full Commission.
¶11. On October 31, 1996, the Full Commission affirmed the order of Judge Lott. From that order,

Johnson appealed to the Madison County Circuit Court. On August 27, 1997, the circuit court reversed the

Commission's order and awarded Johnson weekly benefits of $235.84. Moon and Western Casualty

appealed. The Court of Appeals affirmed the circuit court.

II.

¶12. The applicable standard of review was provided by this Court in Miller Transporters, Inc. v.

Guthrie, 554 So.2d 917, 918 (Miss. 1989):

Decisions of the Mississippi Workers' Compensation Commission on issues of fact will not be

overturned if they are supported by substantial evidence. Myles v. Rockwell International, 445

So.2d 528, 536 (Miss.1983). The Commission is the trier of facts as well as the judge of the

credibility of the witnesses. Roberts v. Junior Food Mart, 308 So.2d 232, 234-35 (Miss.1975).

Doubtful cases should be resolved in favor of compensation, so as to fulfill the beneficial purposes of

the statute. Reichhold Chemical, Inc. v. Sprankle, 503 So.2d 799, 802 (Miss.1987); Barham v.

Klumb Forest Products Center, Inc., 453 So.2d 1300, 1304 (Miss.1984).

¶13. Miss. Code Ann. § 71-3-31(1995) provides in part: "Except as otherwise specifically provided, the

basis for compensation under this chapter shall be the average weekly wages earned by the employee at the

time of the injury, such wages to be determined from the earnings of the injured employee in the

employment in which he was working at the time of the injury during the period of 52 weeks immediately

preceding the date of the injury divided by fifty-two . . . ." Section 71-3-3(b) adds, in part: "'Injury' means

accidental injury or accidental death arising out of and in the course of employment without regard to fault

which results from an untoward event or events, if contributed to or aggravated or accelerated by the

employment in a significant manner." Finally, § 71-3-3(i) states: "'Disability' means incapacity because of

injury to earn the wages which the employee was receiving at the time of injury in the same or other

employment, which incapacity and the extent thereof must be supported by medical findings."

¶14. The Court of Appeals relied primarily on Pepsi Cola Bottling Co. of Tupelo, Inc. v. Long, 362

So.2d 182 (Miss. 1978), where Long suffered what appeared at first to be a minor injury in 1972 when he

bumped his head against the cab door of his truck. He reported the incident to his employer but never

received benefits. He consulted doctors who could find nothing wrong with him. The condition worsened to

the point that Long claimed disability by 1974. Long's claim was first dismissed as time barred, but this

Court found that "it was virtually impossible for [Long] to know at the time of the apparently minor

accident, then noncompensable, that it would develop into a compensable injury," and Long had acted with

due diligence in pursuing his claim and it was therefore not time barred. Long, 362 So.2d at 185. Next the

Court addressed the question of the date to be used to calculate Long's benefits. Citing § 71-3-31, the

Court stated:

Ordinarily the time of injury coincides with the accident, but in a latent injury case such as this, the time

lapse can be extensive. Appellee urges that the average weekly wage should be determined from the

time of the disability and the appellants from the time of the accident. Although there are no

Mississippi cases to this effect, appellee cites Radecker v. Blue Plate Foods, 80 So.2d 875

(La.App.1955), Michna v. Collins Company, 116 Conn. 193, 164 A. 502 (1933), and

Atamian's Case, 265 Mass. 12, 163 N.E. 194 (1928).
In Radecker, supra, claimant hurt her waist on May 22, 1953, necessitating surgery on January 9,

1954. As a result of the surgery she quit work on February 19, 1954. That Court held compensation

was to begin as of January 9, 1954, the date of inception of her total disability.

In Michna, supra, the claimant worked as a grinder at which time he contracted a pneumoconiopic

condition of the lungs, which did not result in disability until six years after he terminated his

employment with the defendant. The statute on compensation provided that ascertainment of the

average weekly wage for the purpose of fixing the amount of the award should be made by recourse

to total wages received by a workman during the twenty-six weeks immediately preceding the injury.

That Court held the term injury within the statute meant incapacity and determination of the average

weekly wage should be made from the date of incapacity. See also Rousu v. Collins Co., 114

Conn. 24, 157 A. 264 (1931).

In our opinion Atamian's Case, supra, does not support appellee's position. In that case no exact

date of the injury could be determined and the Court held the board was justified in using the date

when the hernia caused the employee to quit work as the date of the injury.

Further persuasive to appellee's view is the case of Phillips Petroleum Co. v. Malcolm, 175 Okl.

512, 53 P.2d 1113 (1936), in which the employee received a head injury on June 16, 1933, and

continued working until March 1, 1934, when the resultant disability prevented his continued

employment. It was held that where there is an accident which does not incapacitate but is progressive

in nature, it is proper to consider the earnings of claimant between the date of the accident and the

date of the disability.

Long, 362 So.2d at 185-86.

¶15. The Court of Appeals in this case was mistaken when it labeled Johnson's injury a latent one. A latent

injury is an injury that a reasonably prudent man would not be aware of at the moment it was sustained.

Georgia Pac. Corp. v. Taplin, 586 So.2d 823, 827 (Miss. 1991); Quaker Oats Co. v. Miller, 370

So.2d 1363, 1366 (Miss. 1979). Johnson, was aware of his injury from its inception, an injury that "over

time, progressively increased to the point that in 1993 Johnson was no longer able to perform his duties

with his employer." J.H. Moon & Sons, Inc. v. Johnson, No. 97-CC-01170, 1999 WL 30535, at *4

(Miss.Ct.App. Jan. 26, 1999).

¶16. In Long, we cited favorably an Oklahoma case, Phillips Petroleum Co. v. Malcolm, 53 P.2d

1113 (Okla. 1936), which dealt with a progressive injury. In Phillips Petroleum, Malcolm received a

head injury on June 16, 1933, and later developed severe headaches, nervousness and symptoms of

epilepsy. Malcolm continued working until March 1, 1934, when his increasing disability prevented his

continued employment. The Oklahoma Supreme Court held in Malcolm that where an injury is progressive

in nature, the court should consider the earnings of the claimant between the date of the accident and the

date of the disability. Here, as in Malcolm, the 1981 accident did not incapacitate Johnson. Johnson

continued working with an injury that progressive in nature.

¶17. Johnson did not suffer a latent injury. The Court of Appeals was in error to so find. Pepsi Cola

Bottling Co. of Tupelo Inc. v. Long is not analogous since it deals with a latent injury. It did quote the

Malcolm case which is more on point Johnson suffered a single injury in 1981, but the injury at that time

did not prevent him from working. Unfortunately, the injury gradually worsened and progressed to a point
where, by 1993, Johnson was unable to work. The injury was not complete until it was determined that he

was disabled or had a permanent injury

¶18. Johnson suffered an "accident which was clearly job related and the injury at issue. The record reflects

that Johnson suffered no other injuries after the 1981 accident. Thus, there is only one accident and one

injury. In 1986, Dr. Raoul Rodriquez, an orthopedic surgeon concluded that Johnson's prior diagnosis of

carpal tunnel syndrome was both correct and directly attributable to the 1981 accident. If the injury is

deemed progressive in nature, we are confronted with a 1981 accident which caused an injury that was

gradual and progressive and which ultimately manifested itself in 1993 as a total disability and permanent

injury. To hold otherwise would punish Johnson economically for his ever-worsening physical condition.

¶19. We hold that Johnson suffered a single injury in 1981 and that the injury gradually worsened and

progressed to a permanent injury which manifested itself as a total disability in July, 1993. The rate of

compensation should be based on Johnson's salary and/or wages for July 1993. The judgments of the

Court of Appeals and Circuit Court are affirmed and this case is remanded to the Mississippi Workers'

Compensation Commission for further proceedings consistent with this opinion.

¶20. AFFIRMED AND REMANDED.

PRATHER, C.J., SULLIVAN, P.J., BANKS, SMITH, MILLS, WALLER

AND COBB, JJ., CONCUR. PITTMAN, P.J., NOT PARTICIPATING.